The International Human Rights Framework on the Right of Peaceful Assembly
The Netherlands is a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
The Netherlands is also a state party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the state has violated their human rights as protected under the Covenant.
At regional level, The Netherlands is a state party to the 1950 European Convention on Human Rights. Article 11 governs freedom of assembly and association:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
The Domestic Legal Framework on the Right of Peaceful Assembly
Article 9 of the 2008 Constitution governs the right of assembly. The provision stipulates that:
1. The right of assembly and demonstration shall be recognised, without prejudice to the responsibility of everyone under the law.
2. Rules to protect health, in the interest of traffic and to combat or prevent disorders may be laid down by Act of Parliament.
The primary legislation governing the assemblies is the 1998 Public Assemblies Act (as amended).
The Act allows municipal authorities to regulate assemblies. The mayor is empowered under the Act to impose conditions and restrictions or a prohibition after receiving a notification. A prohibition may be imposed "only if":
a. the required notification was not given on time;
b. the required details were not provided on time;
c. the protection of health, the interest of traffic, or the combatting or prevention of disorder so requires.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
The 2012 Police Act authorises police officers to use force when necessary for a legitimate purpose as long as the force used is reasonable and restrained. The use of force will, if possible, be preceded by a warning.Art. 7, 2012 Police Act.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
Firearms may be used to effect an arrest "a person in respect of whom it can reasonably be assumed that he has a firearm ready for immediate use and will use it against persons" or to arrest a person suspected or convicted of committing a crime for which a prison sentence of four years or more has been imposed and which seriously affects physical integrity or privacy, or can be threatening to society. Firearms may also be used to stop a riot.Art. 7, 1994 Official Instruction for the police, the Royal Netherlands Marechaussee and other investigating officers.These scenarios are broader than international law allows.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2019 Concluding Observations on The Netherlands, the Human Rights Committee expressed its concern that
the provisions of the Public Assemblies Act, including the provision that allows mayors to end and prohibit an assembly in the absence of prior notification, are not consistent with the Covenant.
It was also concerned about "the increasing degree of police surveillance and the use of identity checks during peaceful demonstrations, which reportedly have a chilling effect on demonstrators".
It called on The Netherlands to
review the Public Assemblies Act, with a view to removing the prohibition on demonstrations due to a lack of prior notification and to bringing the Act in line with article 21 of the Covenant and other relevant international standards. It should also provide local authorities and police officials with clear guidance on dealing with demonstrations so as to ensure a safe and enabling environment to exercise the right to peaceful assembly.
The Netherlands has not been held to have violated the right of peaceful assembly by the European Court of Human Rights.
Views of Civil Society
According to Freedom House's 2019 report on The Netherlands:
Freedom of assembly is constitutionally guaranteed and generally respected in practice. However, in March 2018 the national ombudsman issued a report which concluded that municipalities and security forces, citing public-safety concerns, sometimes restrict assembly rights by confining protesters to certain areas or prohibiting demonstrations if authorities fear violence or disorder. For example, members of a protest group called Kick Out Black Pete, which demonstrates against an annual Christmas tradition in which people dress as a character known as Black Pete and wear blackface, claimed that in November, the mayors of eight cities either prevented protesters from standing near the events’ locations or banned the demonstrations altogether. Most of the mayors feared violence between the anti-Black Pete protesters and counterdemonstrators, some of whom attacked protesters with eggs and bananas and shouted racist epithets.